Illegal Background Checks

Employers may sometimes request your credit and related personal information in the form of a “Background Check Report”. The other personal information includes your criminal, education, employment, and driving history.

Fair Credit Reporting Act (FRCA)

Specific guidelines in the Fair Credit Reporting Act (FCRA) limit how employers can obtain and use a background check. Before employers can obtain and use your background information, they must certify to the Consumer Reporting Agencies (CRA)  and may only release such a report for employment purposes to an employer if the employer who certifies it did the following:

  • Advised you a report has been requested on you
  • Obtained your written consent for the check (in a stand-alone document)
  • Provided a copy of the background report and a written summary of your rights under the FCRA at least five (5) days before making a decision whether to hire or fire you

After employers have obtained and used your background information, they must provide you with an “adverse action notice” after taking any adverse action containing:

  • Name, address, and phone number of the employment screening company
  • A statement that the employer and not this screening company made the adverse decision
  • A notice that you have the right to dispute the accuracy or completeness of any of the information in the report

The FCRA and other state and municipal laws protect employment applicants with a criminal history:

FCRA Protections

  • CRAs may not report records of arrests more than 7 years old if no conviction resulted (unless the job salary is more than $75,000)
  • Convictions can be reported indefinitely
  • Admission of theft to an employer is not a criminal record 

Pennsylvania Criminal History Act Protections

1)     Purpose – prevents hiring standards that screen out criminal offenses unless reasonably related to performance of the job duties

2)     Any criminal history considered regarding an employment application must be “reasonably related” to the job duties including:

  • Seriousness of the offense (drug offenses are considered serious broadly);
  • Age of the offense and the offender;
  • Blanket policy of excluding ex-offenders? (e.g. black offenders excluded but not white offenders);
  • Summary offenses may not be considered for purposes of employment

Philadelphia “Ban the Box” Law for Philadelphia Employers

  • NO questions about an applicant’s criminal history on an employment application or in an initial interview
  • NO criminal background checks until after the employer makes a conditional job offer to an applicant
  • Applies to employers with ten or more employees
  • Criminal background checks can be obtained back seven years, excluding periods of incarceration
  • If an applicant is rejected due to a criminal record:
    • The employer must notify the applicant and send to the applicant a copy of the criminal history report
    • Applicants then have ten days to produce evidence that the report is inaccurate or to explain the criminal history
    • Applicants who are rejected for positions on the basis of a criminal background check have three hundred days to file a complaint with the Philadelphia Commission on Human Relations